Delhi

StateCommission

CC/1007/2016

MANOJ & ANR. - Complainant(s)

Versus

UNITECH LTD. & ANR. - Opp.Party(s)

19 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Complaint Case No. 1007/2016

In the matter of:

1. Sh. Manoj

S/o Dr. Brajesh

R/o 613, Sector 29

Noida 201301

2. Ms. Aparna Sinha

W/o Sh. Manoj

R/o 613, Sector 29

Noida 201301                               …….Complainants

Versus

1. Unitech Ltd.

Registered Office at:

6, Community Centre

Saket, New Delhi-110017

 

2. Sh. Ramesh Chandra

Executive Chairman

Unitech Ltd.

6, Community Centre

Saket, New Delhi-110017

 

3. Sh. Sanjay Chandra

Managing Director

Unitech Ltd.

6, Community Centre

Saket, New Delhi-110017.........Opposite Parties

                                                                     

BEFORE:

JUSTICE VEENA BIRBAL                 -                       PRESIDENT

 

1.             Whether reporters of local newspaper be allowed to see the judgment?                                                                Yes

2.             To be referred to the reporter or not?                                                                                                              Yes

 

Dated: 19^th December 2018

ORDER

Justice Veena Birbal, President

 

1.     The complainants had applied vide application dated 20.07.2009 for registration of provisional allotment of apartment in the project of OP namely, “Unitech Unihomes” at plot no. GHP 0001 Sector 117, Noida, Uttar Pradesh. Alongwith application the complainants had deposited Rs. 2,86,000/- by way of cheque bearing no. 379257 dated 15.06.2009 drawn on HDFC Bank to OP-1. Complainants had opted for construction link plan. OP vide letter dated 12.10.2009 informed complainants that they had been provisionally allotted a 3BHK apartment bearing no. 0605, on floor no. 06 in Tower B1, admeasuring super area of 990 sq. ft. for a total consideration of Rs. 29,94,884/-. The said allotment letter was also having terms and conditions of allotment. As per terms and conditions of allotment, possession of the apartment was to be delivered by OP-1 within 24 months subject to force majurea circumstances. Thereupon OP-1 had issued demand letters from time to time. Complainants complied with said demands and in all deposited agreed amount of Rs. 33,26,245/- against the basic agreed cost of Rs. 29,94,884/-. Possession of the flat was not delivered to complainants within 24 months as was agreed. As per clause 5 C (ii) of allotment letter, OP had agreed to pay charges @ Rs. 5/- per sq. ft. of super area for the period of delay in offering possession of said apartment beyond the period indicated in clause 5A(i) of allotment letter. Further as per clause 5(D) of allotment letter, which pertains to ‘Default’, it is stated that if OP is not in a position to offer allotted apartment, in that event OP has to offer alternative property or refund of amount paid with simple interest @ 10% p.a. It is stated that complainants had visited office of OP-1 number of times saw that OP had stopped further construction of the said apartment/project. The said state of affairs continued for four years and no possession was offered by OP-1. On 14.09.2015 a letter was issued by OP-1 asking complainants to sign a duplicate copy of said letter giving consent to start interior work and fit out work. By said letter OP-1 also asked complainants to sign MOU as token of acceptance and clear all dues as per statement of account attached with the said letter. By said letter OP-1 had raised further demands by increasing area of flat which also included some other charges. The aforesaid letter was issued without there being any OC or completion certificate with OP-1. It is also alleged that MOU was about the complainants agreeing not to raise any claim against OP about penalty or compensation. It is alleged that without OC/completion certificate OP-1 could not have issued provisional possession of unit in question to complainants. On 14.01.2016 complainant had written letter to OP in response to their letter dated 14.09.2015 that OP had played fraud upon complainants in issuing the possession letter without obtaining completion certificate of the project. No response to said letter was given. Ultimately the complainants also moved an application under RTI with Noida Authority wherein it was disclosed that OP owed a sum of Rs. 806.27 crores to it. The complainants issued legal notice to OP seeking response to his earlier letters. However no response was given. Ultimately complainants has filed present complaint for refund of amount alongwith interest and litigation costs.
2.     Notice was sent to OP. OP sought time for filing written statement. However, no written statement was filed. Vide order dated 07.07.2017 right of OP to file written statement was closed. The said order has not been challenged by OP. Complainant-1 Sh. Manoj has filed ex-parte evidence by way of his affidavit wherein he has reiterated the contents of complaint case on oath and has placed on record copy of application for Registration dated 20.07.2009 Annexure C-1, copy of Brochure of the said project, Annexure C-2; copy of allotment letter dated 12.10.2009, Annexure C-3; copy of receipts of payments made alongwith last two demand letters dated 07.02.2011 and 07.10.2011 i.e. Annexure C-4 (colly); copy of letter dated 10.04.2015 received by complainant, Annexure C-5; copy of letter dated 01.05.2015 requesting change of address is Annexure C-6; copy of letter dated 14.09.2015 Annexure C-7; copy of letter dated 14.01.2016, Annexure C-8; copy of the proof of delivery of letter dated 14.01.2016 Annexure C-9; copy of application made under RTI Act by complainants, Annexure C-10; copy of reply to the application under RTI Act is Annexure C-11; copy of letter dated 30.05.2016, Annexure C-12; copy of proof of delivery of letter dated 30.05.2016, Annexure C-13; copy of rent agreement, Annexure C-14; copy of newspaper report in ‘The Tribune is Annexure C-15.  
3.     Evidence on record establishes that OP has failed to deliver possession within the stipulated period, even thereafter in the year 2015 OP has only issued provisional possession for the purpose of fit outs only. Evidence on record also establishes that till today no offer of possession is made. As per complainants there is no completion certificate/occupation certificate of project with OP. The receipt on record shows that complainant has already paid Rs. 33,26,245/- to OP. Possession was to be offered by 02.10.2011. Till date possession is not offered. OP has also not obtained even completion certificate. No defence of OP has come on record. From the unrebutted evidence, deficiency in service and unfair trade practice is established on the part of OPs.
4.     Now the question arises as to what should be the compensation.
5.     Clause 5(D) of allotment letter is relevant for deciding the compensation. The aforesaid Clause deals with the compensation to be paid by OP where OP fails to deliver the possession of the apartment to the allottee. The aforesaid clause reads as under:

“Default

If for any reason Developer is not in a position to offer the Allotted Apartment, the developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with Simple Interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

 

6.     In view of aforesaid clause OP is liable to pay 10% p.a. interest on the deposited amount as compensation for its default.     
7.     In view of above discussion, complaint is allowed with following directions:

1. The OP shall refund the entire amount of Rs. 33,26,245/- to complainant alongwith interest @ 10% p.a. from the date of its deposit till the date of its realization.

ii. OP shall also pay Rs. 25,000/- towards costs of litigation to complainant.

The abovesaid amounts shall be paid by the OP to the complainant within a period of six weeks from the date of receipt of the order.

8.         Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(Justice Veena Birbal)​

President